A MINORITY VIEW

Why a Bill of Rights?

Walter E. Williams explains distrust in government that led to amendments' inclusion

Walter E. Williams, Ph.D., is the John M. Olin Distinguished Professor of Economics at George Mason University in Fairfax, Va. He holds a Doctor of Humane Letters from Virginia Union University and Grove City College, Doctor of Laws from Washington and Jefferson College and Doctor Honoris Causa en Ciencias Sociales from Universidad Francisco Marroquin, in Guatemala, where he is also Professor Honorario.

Why did the founders of our nation give us the Bill of Rights? The answer is easy. They knew Congress could not be trusted with our God-given rights. Think about it. Why in the world would they have written the First Amendment prohibiting Congress from enacting any law that abridges freedom of speech and the press? The answer is that in the absence of such a limitation Congress would abridge free speech and free press. That same distrust of Congress explains the other amendments found in our Bill of Rights protecting rights such as our rights to property, fair trial and to bear arms. The Bill of Rights should serve as a constant reminder of the deep distrust our founders had of government. They knew that some government was necessary, but they rightfully saw government as the enemy of the people and they sought to limit government and provide us with protections.

After the 1787 Constitutional Convention, there were intense ratification debates about the proposed Constitution. Both James Madison and Alexander Hamilton expressed grave reservations about Thomas Jefferson’s, George Mason’s and others’ insistence that the Constitution be amended by the Bill of Rights. Those reservations weren’t the result of a lack of concern for liberty. To the contrary, they were concerned about the loss of liberties.

Alexander Hamilton expressed his reservation in Federalist Paper No. 84, “(B)ills of rights … are not only unnecessary in the proposed Constitution, but would even be dangerous.” Hamilton asks, “For why declare that things shall not be done (by Congress) which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given (to Congress) by which restrictions may be imposed?” Hamilton’s argument was that Congress can only do what the Constitution specifically gave it authority to do. Powers not granted belong to the people and the states. Another way of examining Hamilton’s concern: Why have an amendment prohibiting Congress from infringing on our right to picnic on our back porch when the Constitution gives Congress no authority to infringe upon that right in the first place?

Alexander Hamilton added that a Bill of Rights would “contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more (powers) than were granted. … (it) would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” Going back to our picnic example, those who would usurp our God-given liberties might enact a law banning our right to have a picnic. They’d justify their actions by claiming that nowhere in the Constitution is there a guaranteed right to have a picnic.

To mollify Alexander Hamilton’s and James Madison’s fears about how a Bill of Rights might be used as a pretext to infringe on human rights, the Ninth Amendment was added that reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In essence, the Ninth Amendment says it’s impossible to list all of our God-given or natural rights. Just because a right is not listed doesn’t mean it can be infringed upon or disparaged by the U.S. Congress. The 10th Amendment is a reinforcement of the Ninth, saying, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That means if a power is not delegated to Congress, it belongs to the states or the people.

The Ninth and 10th Amendments mean absolutely nothing today, as Americans have developed a level of naive trust for Congress, the White House and the U.S. Supreme Court that would have astonished the founders, a trust that will lead to our undoing as a great nation.